CASE OF POSTICA v. THE REPUBLIC OF MOLDOVA

FIFTH SECTION

CASE OF POSTICA v. THE REPUBLIC OF MOLDOVA

(Application no. 49906/14)

JUDGMENT
 

STRASBOURG

15 May 2025

This judgment is final but it may be subject to editorial revision.

In the case of Postica v. the Republic of Moldova,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 María Elósegui,
 Diana Sârcu, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 49906/14) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 June 2014 by a Moldovan national, Mr Serghei Postica (“the applicant”), who was born in 1977, lives in Băcioi and was represented by Mr S. Balaban, a lawyer practising in Chișinău;

the decision to give notice of the application to the Moldovan Government (“the Government”), represented by their Agent, Mr D. Obadă;

the parties’ observations;

Having deliberated in private on 24 April 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present case concerns the search of the applicant’s home and seizure of his possessions. The applicant complained that the search was in breach of his right to respect for his home guaranteed by Article 8 and that he had had no effective remedies at his disposal in that respect, contrary to Articles 6 and 13 of the Convention.

2.  In particular, on 1 February 2013 a criminal investigation was initiated in respect of the applicant on charges of fraud. He was suspected of taking 20,000 euros (EUR) from M.C. to acquire a plot of land on his behalf, but after failing to keep the promise the applicant had refused to return the money. On 7 August 2013 the prosecutor brought formal charges in respect of the applicant; the decision reiterated word for word the description of events provided in the decision of 1 February 2013 to initiate the investigation.

3.  On 27 November 2013 the prosecutor adopted a decision to search the applicant’s home, the decision read as follows:

“The criminal investigation found that in 2009 [the applicant had taken 20,000 EUR from M.C. to acquire a plot of land] but subsequently had postponed indefinitely the formalities of the alleged acquisition for various reasons. ... During meetings, [the applicant] showed various documents concerning ownership, location of the plots, implying that they were authentic.

In these circumstances it is necessary to search [the applicant’s] home ... in order to find objects and assets acquired as a result of the criminal offence, documents which are important to the case concerning property, land plans, land registry documents, etc.

Because the materials of the criminal case allow to assume that objects important for the said criminal case are located at [the applicant’s home], I order the following:

1.  that a search be carried out [in the applicant’s home], in order to find and seize objects and assets acquired as a result of the criminal offence, documents which are important for the case concerning property, land plans, land registry, etc.;

2.  that this decision be executed by the members of the criminal investigating group.”

The prosecutor submitted his search decision for the authorisation of the investigating judge.

4.  On the same day the Centru District investigating judge authorised the search. The warrant used the exact same wording as the prosecutor’s decision when describing the scope of the granted search powers.

5.  On 14 December 2013 the police searched the applicant’s home and seized two mobile telephones, a laptop, an unidentified “set of documents”, two hunting rifles and ammunition for rifles. The search was carried out in the presence of the applicant’s wife and children.

6.  According to the applicant, he was provided with the search warrant issued by the investigating judge on 27 November 2013 only on 2 January 2014 after he had complained to the Prosecutor General’s office on 18 December 2013.

7.  On 3 January 2014 the applicant appealed against the search warrant, arguing that the warrant had not relied on sufficient reasons and that there had been no reasonable suspicion that he had committed a criminal offence. He argued that he had borrowed money from M.C. and that there had been disagreements between them concerning the applicable interest rate, disputes which in any event were to be settled in civil courts. On 24 January 2014 the Chișinău Court of Appeal rejected his appeal as time-barred.

8.  On 9 January 2014 the applicant lodged a complaint with the investigating judge, arguing that the search had been unlawful because it had taken place in his absence, and because the police had seized documents and objects which were unrelated to the criminal charges against him and had not been mentioned in the search warrant. He sought the annulment of the search results. On 26 February 2014 the Centru District investigating judge rejected his complaint. The judge noted that the applicant had not formally appealed against the search warrant issued on 27 November 2013 but that in any event an assessment on the merits of the complaint showed that the search had been carried out in compliance with domestic criminal procedure law. The decision did not include any assessment on the compliance with the scope of the search warrant.

9.  On 13 March 2014 the prosecutor discontinued the criminal investigation in respect of the applicant concluding that no criminal elements had been discerned in his relations with M.C.

10.  The applicant complains under Article 6, 8 and 13 of the Convention about the disproportionality of the search measure and the unsatisfactory judicial remedy.

THE COURT’S ASSESSMENT

11.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

12.  The applicant submitted that the search had been carried out to “settle accounts” with M.C., a former police officer, while there had been no reasonable suspicion that the applicant had committed a criminal offence. He argued that the search warrant did not provide any reasonable and sufficient reasons because its text was too general, while the judge had simply repeated word for word the prosecutor’s request. Lastly, he complained that the police made no attempt to contact him on that day to secure his presence.

13.  The Government disagreed and submitted that the measure was provided by law, pursued the legitimate aim of defending public order and preventing crime, and was proportionate. They contended that the domestic law allowed for the search to be conducted in the absence of the concerned person but in the presence of an adult member of the family. They submitted that the search warrant had been sufficiently precise and that a more precise description of the objects to be seized or their format (electronic or paper) would have limited the granted search powers unnecessarily. They submitted that the seizure of the applicant’s computer and phone had been proportionate because they may have stored documents included in the search warrant, albeit in electronic form, including in the applicant’s electronic mail account. The Government submitted that the seizure of the applicant’s rifles and munition had been lawful, even if not explicitly covered by the search warrant, because the applicant’s wife was unable to produce a licence authorising their storage. Subsequently, it had been found that the applicant’s arms licence had expired on 4 November 2013 and the applicant was accordingly prosecuted for illegal storage of munition.

14.  The Court reiterates that, where States consider it necessary to resort to measures such as searches of residential premises in order to obtain evidence of offences, it will assess whether the reasons adduced to justify such measures were relevant and sufficient, and whether the proportionality principle has been adhered to (see Buck v. Germany, no. 41604/98, § 45, ECHR 2005‑IV). The Court will also explore the availability of effective safeguards against abuse or arbitrariness under domestic law and check how those safeguards operated in the specific case being examined (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 38, 22 May 2008).

15.  The Court notes that the applicant’s home was searched on the basis of a court decision in the course of criminal proceedings in which he was charged with fraud. The measure amounted to an interference with the applicant’s “home” and “correspondence” and it can be accepted that the interference was “in accordance with the law” and served a legitimate aim under Article 8 § 2 of the Convention. The question whether the way in which the police carried out the search was duly circumscribed by the warrant which authorised it will be examined from the perspective of the necessity of the interference.

16.  Prior judicial authorisation of the search was an important safeguard against abuse. The Court notes that a part of the warrant specified the link to the investigated criminal offence and that the search concerned documents related to property. However, the part referring to “objects and assets acquired as a result of the criminal offence” was couched in broad terms (see paragraph 3 above). The warrant did not provide any further detail as to property concerned or the form of the sought documents or the type of sought objects and assets, even though it could have done so, given the scope of the criminal case which dealt with the alleged fraud and refusal to return an amount of money. It could have explicitly provided for the seizure and subsequent analysis of the content of the applicant’s phones and personal laptop, as well as content of his email account, especially because the latter required a separate authorisation by an investigation judge under Article 133 of the Code of Criminal Procedure.

17.  The specificity of the items subject to seizure varies from case to case depending on the nature of the offence being investigated (see Sher and Others v. the United Kingdom, no. 5201/11, § 174, ECHR 2015 (extracts)). If the case is a large-scale and complex terror investigation, with a significant number of uncertainties, a wide description could well be sufficient (ibid.). However, in a financial fraud investigation, a search warrant granted “in order to investigate and seize any documents that might assist in the investigation” has been found by the Court to be insufficiently precise, as it imposed no limitation of any sort on the police officers carrying out the search (see Van Rossem v. Belgium, no. 41872/98, § 47, 9 December 2004).

18.  In the present case, the broad terms of the warrant gave the police unrestricted discretion in determining which items and documents were to be seized. This was reflected in the way in which it was executed, seizing mobile telephones and a computer. The Court observes that the subsequent judicial review did not seek to assess whether there had been compliance with the scope of the search warrant and whether these items were seized as proceeds of the alleged crime or as “documents concerning property” (see paragraph 9 above). The absence of such an assessment for the interference with the applicant’s electronic data cannot be remedied by the interpretation of the search warrant’s scope put forward by the Government in their submissions before the Court (see paragraph 13 above). In any event, the discontinuation of criminal proceedings in respect of the applicant for lack of criminal elements three months after the search was indicative of the lack of relevance of the seized items to the criminal case (see paragraph 9 above).

19.  It has to be noted that the vagueness and excessively broad terms of a search warrant giving the authority executing them unjustified discretion in determining the real scope of the search have been earlier criticised by the Court (see Bagiyeva v. Ukraine, no. 41085/05, §§ 52-56, 28 April 2016 and further cited references; Misan v. Russia, no. 4261/04, §§ 60-62, 2 October 2014; Van Rossem v. Belgium, cited above).

20.  For this reason, having regard to the broad terms of the search warrant in the present case, the Court does not consider that prior judicial authorisation of the search or the subsequent judicial control proved to be appropriate safeguards against the possible abuses of power during its execution.  In these circumstances, the Court considers that the search of the applicant’s home and correspondence constituted an interference which was not proportionate to the aim sought.

21.  It concludes that there has been a violation of Article 8 of the Convention.

22.  The applicant also complained under Articles 6 and 13 of the Convention. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant claimed 11,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,500 in respect of costs and expenses incurred before the Court. The applicant did not submit any document in support of his claim for costs and expenses.

24.  The Government argued that the claims were excessive and unsupported by any evidence.

25.  The Court awards the applicant EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.

26.  Finally, the applicant failed to provide any supporting documents that he had actually incurred the costs and expenses claimed. The Court therefore dismisses his claim in respect of costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, 4,500 EUR (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 15 May 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President